Opposition Brief — Sejman v. Warner-Lambert Co.

Supreme Court, U.

FILED

No. 89-1566 : | ua 3S wh

JOSEPH F-SPANIOL, JR.

CLERK

IN THI

Supreme Court of the United States

OCTOBER TERM, 1989

_>

VIRGINIA M. SEJMAN, A. R. TRAUTWEIN, THOMAS J. MCHUGH, JR.,

GLENDA IDLE, ROY G. COOK, JOSEPH D. DUBUQUE, ROBERT C.

REESE, JOE L. NORMAN, MORRIS LEISTER, MARY.J. MILLER, RAY

MOND G. BERNHARDT, and LEWIS LATHREN,

Petitioners,

Vv.

W ARNER-LAMBERT COMPANY, INC...

Respondent.

——-

THOMAS H. GIVENS, M. L. BRANNON,

JOHN J. CAPUTO, and C.E.ROBINSON, JR..,

Petitioners,

W ARNER-LAMBERT COMPANY, IN¢

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSETION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

Of Counsel: Margaret Blair Soyster

William I. Greenbaum (C ounsel of Record)

Warner-Lambert Company ROGERS & WELLS

201 Tabor Road 200 Park Avenue

Morris Plains, New Jersey 07950 New York, New York 10166

(212) 878-8009

MT BEST AVAILABLE COPY

i

QUESTIONS PRESENTED

1. Whether the court of appeals correctly sustained

Warner-Lambert Company’s denial of severance pay, in

accordance with the language and purpose of its severance

policy and consistent with uniform past practice, to individ-

uals who had last been employed by Warner-Lambert more

than three years earlier, who based their claims to severance .

pay upon actions taken by their new employer without. a

Warner-Lambert’s knowledge or participation, and most of — ~~

whom had not-even lost their jobs.

2. Whether the court of appeals was correct to reject the

petitioners’ claim of a vested, contractual right to severance

pay purportedly established by a 1983 case decided under

South Carolina common law, in light of the contingent and

unaccrued nature of severance benefits under the Employee

Retirement Income Security Act (‘‘ERISA’’) and in view of

ERISA’s sweeping preemption provision.

<< heo RIET. TSB,

|

|

il

PARTIES TQ THE PROCEEDING

All parties to this proceeding are identified in the caption.

l Warner-Lambert’s list of parent companies and subsidiaries (except

wholly owned subsidiaries), required by Rule 29.1 of this Court, has

already been filed with the Clerk.

iil

TABLE OF CONTENTS

SPGPIEEPE SUPE W ORMEISEN EME) hc os cece sarvcvccesuvecs

Pe seee A6) BH PROCEGUING ....cceveccesces

I ME GRIROE BITE Ds oo ov ein cne rhe ict vacetveses

TABLE OF AUTHORITIES Fudiu VauSb wh ekbaeseenes

EE od iNickc kv ced essa ¥eaneewedvaeeus

Es ck ei odeUss sodevaiescidevsevenves

RMRRUIOIENE NA BRUM CASE 5 osc e cence ceccsvcces

Pie PMY PPOROPOUIG , occ cece ccc yee cccenee

Ss eae snd bae vous sos

REASONS FOR DENYING THE WRIT............

1]. THE UNIQUE BACKGROUND OF THE

CASES MAKES REVIEW UNWARRANTED

Il. THE. DECISION OF THE COURT OF

APPEALS IS NOT IN CONFLICT WITH

ANY DECISION OF ANOTHER COURT OF

"og |. * SS a Berets fries eer

Ill. THE COURT OF APPEALS PROPERLY

APPLIED ERISA STANDARDS IN WEIGH-

ING THE CLAIMS FOR SEVERANCE PAY

1. .Contingent Nature of Severance Benefits .

Se oc S 5a shea s bees vibes eased e408

8 ae eee erreny rre eae

PAGE

iil

iv

iV

TABLE OF AUTHORITIES

Cases PAGE

Adcock v. Firestone Tire & Rubber Co., 822 F.2d 623

Se Ss WEE ok Coes Ke t¥ modo tendotwe ns 8

Anderson v. Ciba-Geigy Corp., 759 F.2d 1518 (11th

Cir.), cert. denied, 474 U.S. 995 (1985) ........... 8

Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir.

1984), cert. denied, 474 U.S. 865 (1985)........... 8

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101

GR po a vas bold wh eG wae ae needa a Soeed wee ee eee 6

Ft. Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) 10

Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th

eS >. RR ieee ea ane Fare Oars A RU Age Sky Ph oe re 8, 9

Holland v. Burlington Indus., 772 F.2d 1140 (4th Cir.

1985), aff'd mem. sub. nom. Brooks v. Burlington

Indus., 477 U.S. 901 (1986) and cert. denied, 477

Sa SOE AOE 6s od kode heeuaannee ees Otes erdaN 8

Jung v. FMC Corp., 755 F.2d 708 (9th Cir. 1985) ... &

Livernois v. Warner-Lambert_Co., 723 F.2d 1148 (4th

Sls Se 6 h6i 0s Rhee eh be nsdee ees ends se eee passim

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) .. 11

Schwartz v. Newsweek, Inc., 827 F.2d 879 (2d Cir.

Sejman v. Warner-Lambert Co., 889 F.2d 1346 (4th

Ce ES pn sa bie oo eK ESS ood ee passim

PAGE

Simmons v. Diamond Shamrock Corp., 844 F.2d 517

(Sth Cir, 1DBBP oie acct cece esevesccsessens ~—~8

Sly v. P.R. Malloy & Co., 712 F.2d 1209 (7th Cir.

| errr rer re se 8

Statutes

y: Bin Rome By." {| Peewee rrr rire ry irr oss = 2

Employee Retirement Income Security Act (ERISA)

29: U.3.C.. 6 30D) Ol WG. sc ccactessccuveeeseernss 2

2S ere perrereverrer sry ss 2, 9

Bj Reve rrrerrrr errr rs tres 2,9

6 F8GME) .. crcccivestsczssvevoaseerens a 433

Legislative Material

H.R. Rep. No. 807, 93d Cong. 2d Sess. 60, reprinted

in 1974 U.S. Cong. & Admin. News 4890 (1975)... 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1566

oo

VIRGINIA M. SEJMAN, A. R. TRAUTWEIN, THOMAS J.

MCHUGH, JR., GLENDA IDLE, ROY G. COOK, JOSEPH

D. DUBUQUE, ROBERT C. REESE, JOE L. NORMAN,

MORRIS LEISTER, MARY J. MILLER, RAYMOND G.

BERNHARDT, and LEWIS LATHREN, oY

Petitioners,

—_V—

WARNER-LAMBERT COMPANY, INC.,

Respondent.

—

THOMAS H. GIVENS, M. L. BRANNON,

JOHN J. CAPUTO, and C. E. ROBINSON, JR.,

Petitioners,

—_—V.—

WARNER-LAMBERT COMPANY, INC.,

Respondent.

>

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

Respondent Warner-Lambert Company opposes granting

the petition for a writ of certiorari seeking review of the

judgment of the United States Court of Appeals for the

Fourth Circuit entered in these cases on November 24, 1989.

2

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth Cir-

cuit is reported at 889 F.2d 1346 (4th Cir. 1989). The Order

of the District Court for the District of South Carolina grant-

ing summary judgment in favor of Warner-Lambert is unre-

ported. An earlier opinion of the Court of Appeals for the

Fourth Circuit in these cases is reported at 845 F.2d 66 (4th

Cir. 1988).

JURISDICTION

Discretionary jurisdiction to review the judgment of the

Court of Appeals for the Fourth Circuit, entered on Novem-

ber 24, 1989, rests on 28 U.S.C. § 1254(1). A petition for

rehearing and a suggestion for rehearing en banc were denied

on January 5, 1990. Warner-Lambert’s time to submit its

brief in opposition to the petition for a writ of certiorari was

extended to July 5, 1990.

STATUTE INVOLVED

This case involves the Employee Retirement Income Secu-

rity Act, 29 U.S.C. § 1001 et seq. Of particular relevance are

its provisions exempting employee welfare benefit plans, such

as severance benefit plans, from the statute’s stringent

accrual, vesting, and funding requirements, 29 U.S.C.

§§ 1051, 1081, and providing for broad preemption of ‘‘any

and all State laws insofar as they may now or hereafter relate

to any employee benefit plan.’’ 29 U.S.C. § 1144(a).

STATEMENT OF THE CASE

In these cases, sixteen individuals, who have not been

employed by Warner-Lambert since January 1982 and most

of whom have not even lost their jobs, seek to recover hun-

dreds of thousands of dollars of severance benefits from

Warner-Lambert because of actions taken by their new

employer. The court of appeals rejected the petitioners’

claims that they had a vested, continuing right to severance

pay from Warner-Lambert and found that they must instead

look to their new employer for any severance: benefits.

A. Factual Background

On January 20, 1982, Warner-Lambert sold its Medical-

Surgical Division as a going concern to Professional Medical

Products, Inc. (‘‘PMP’’). Following the sale to PMP, the

employees in the Medical-Surgical Division, including the

petitioners here, continued to work without interruption in

the same jobs, at the same location, with the same seniority,

at the same or higher salary, and with fully comparable

employee benefits.

Notwithstanding that there had been no interruption in

their employment, eleven employees of the Medical-Surgical

Division, including six of the sixteen petitioners here, brought

suit against Warner-Lambert, claiming a right to severance

pay as a result of the sale. Relying exclusively on a breach of

contract theory, they alleged that, even though they contin-

ued to work in the same jobs, they had been terminated as a

result of job elimination by virtue of the sale and thus were

entitled to severance pay under Warner-Lambert’s 1981 sever-

ance policy.’

Following a trial, the district court found in favor of the

plaintiffs and made severance pay awards to them ranging

from a low of $23,796.40 to a high of $58,625.98. On appeal,

the Court of Appeals for the Fourth Circuit reversed. The

Fourth Circuit, exercising diversity jurisdiction, held, as a

matter of South Carolina common law, that the plaintiffs

had not been terminated by reason of job elimination within

the meaning of the Warner-Lambert severance policy and dis-

2 Warner-Lambert’s 1981 severance policy provided in relevant part:

Purpose: To assure fair treatment to an employee terminated by

the Company as a result of job elimination, work performance or

other reasons of Company convenience except for violation of com-

pany rules or regulations. .

4

missed their claims as premature. Livernois v. Warner-

Lambert Co., 723 F.2d 1148, 1156-57 (4th Cir. 1983). The

court of appeals went on to interpret Warner-Lambert’s sev-

erance policy as implicitly imposing on Warner-Lambert

future liability for severance payments in the event that PMP

terminated an employee for other than just cause and failed

to satisfy the severance pay obligation. Livernois, 723 F.2d at

1157.

The petitioners in the Givens case worked for PMP for

more than three years following the divestiture. In 1985, each

of the four of them was terminated by PMP and allegedly

received less severance pay from PMP than they would have

been entitled to under Warner-Lambert’s 1981 severance pol-

icy. Notwithstanding that the Givens petitioners had not

worked for Warner-Lambert for more than three years when

they were let go by PMP and that Warner-Lambert had no

role in or control over their terminations, they claim entitle-

ment to a total of almost $200,000 in additional severance

benefits from Warner-Lambert.

The petitioners in Sejman, on the other hand, have not, to

this day, been terminated by PMP. All of them have

remained employed by PMP from the date of the sale up to

the present time, with the single exception of petitioner

Glenda Idle who voluntarily retired from PMP during 1985

and is receiving retirement benefits. In an apparent effort to

supplement their ongoing salary or retirement payments from

PMP with severance payments from Warner-Lambert, the

Sejman petitioners contend that, effective February 1, 1985,

when PMP revised its severance policy to provide reduced

benefits in certain circumstances, they experienced job elimi-

nation within the meaning of the Warner-Lambert severance

policy. They claim entitlement to more than $400,000 in sev-

erance benefits. Indeed, even petitioner Idle, who completed

her working life at PMP and is now in voluntary retirement,

maintains that she is owed $53,227 in severance benefits by

Warner-Lambert.

B. Prior Proceedings

In mid-1985, the Givens and Sejman petitioners com-

menced actions in the United States District Court for the

District of South Carolina to recover severance benefits alleg-

ediy due to them under Warner-Lambert’s severance policy.

Their claims were asserted under both the South Carolina

common law of contracts and ERISA. The petitioners based

their claims of entitlement to severance pay upon the Fourth

Circuit’s decision in Livernois v. Warner-Lambert Co., 723

F.2d 1148 (4th Cir. 1983).

Following the completion of discovery, Warner-Lambert

moved for summary judgment in both cases on the grounds

that the common law breach of contract claims had been pre-

empted by ERISA and that Warner-Lambert’s denial -of sev-

erance benefits was neither arbitrary nor capricious as a

matter of law and thus could not support a claim under

ERISA. The district court denied the motions in an Order

dated February 5, 1987. -

Although the district court recognized that ‘‘The scope of

ERISA is unquestionably broad and generally it would pre-

empt breach of contract claims founded upon state law prin-

ciples,’ it nonetheless held that the petitioners’ breach of

contract claims were not preempted by ERISA and that the

cases would be governed by the Fourth Circuit’s decision in

Livernois. The district court reasoned that ‘‘The law of the

case doctrine dictates that Warner-Lambert be bound by the

Livernois solution.’ In light of that holding, the district

court did not reach Warner-Lambert’s arguments under

ERISA.

On appeal, the Fourth Circuit rejected Livernois as the

determinative authority in the cases and held instead that the

standards provided in ERISA were preemptive and should be

applied in weighing the petitioners’ claims to severance pay.

Sejman v. Warner-Lambert Co., 845 F.2d 66, 70 (4th Cir.

1988) (‘‘Sejman I’). Consequently, the matter was remanded

to the district court for a determination whether, considering

‘“‘the totality of the circumstances,’’ Warner-Lambert’s denial

6

of severance benefits was ‘‘arbitrary or capricious.’’ Sejman

I, 845 F.2d at 70.

On remand, the district court granted Warner-Lambert’s

renewed motion for summary judgment, finding that its

denial of severance benefits to the petitioners was not arbi-

trary or capricious. In reaching that conclusion, the district

court focused, in particular, on the petitioners’ ‘‘clear’’ ineli-

gibility for severance benefits under the ‘‘plain language’’ of

Warner-Lambert’s severance policy; Warner-Lambert’s

adherence to its consistent past practice in connection with

more than fifty-five divestitures over the course of thirty

years; and the ‘‘windfall’’ nature of the recovery which the

petitioners were seeking to obtain.

The Fourth Circuit affirmed the judgment of the district

court that the petitioners had no entitlement to severance

benefits from Warner-Lambert.’ Sejman v. Warner-Lambert

Co., 889 F.2d 1346 (4th Cir. 1989) (‘‘Sejman IT’). Acknowl-

edging at the outset that this Court’s intervening decision in

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989),

required review of Warner-Lambert’s denial of severance pay

under the de novo standard rather than the arbitrary and

capricious standard, the court of appeals found it ‘‘clear that

Warner-Lambert’s action was justifiable under the de novo

standard.’’ Sejman IT, 889 F.2d at 1348.

Relying on the contingent and unaccrued nature of sever-

ance benefits under ERISA, the Fourth Circuit rejected the

petitioners’ claims that Livernois, 723 F.2d 1148, gave them a

vested contract right to severance pay from Warner-Lambert.

Sejman ITI, 889 F.2d at 1348-49. The court of appeals then

proceeded to review the language and purpose of Warner-

Lambert’s severance policy, its past practice under the sever-

ance policy, and the ‘‘windfall recovery’? which would result

from a finding for the petitioners, all of which led to the,

conclusion that the petitioners were not entitled to severance

3. + The affirmance was unanimous with respect to the Sejman petition-

ers, but there was a dissent with respect to the Givens petitioners.

7

benefits from Warner-Lambert. Sejman IJ, 889 F.2d at 1349-

50.

In conclusion, the Fourth Circuit stated:

To hold Warner-Lambert liable in this case wouid do

violence both to Supreme Court and circuit precedent. It

would be inconsistent with the character of severance

pay plans as described by this circuit in Sutton [v. Weir-

ton Steel], 724 F.2d at 410, with the principles of federal

preemption of state contract law under ERISA as enun-

ciated by the Supreme Court, Pilot Life Ins. Co. y.

Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed:2d° 39

(1987), see also Shaw v. Delta Air Lines, 463 US. 85,

103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), and with the

controlling effect accorded ERISA by Sejman in this

very case. These principles point to one conclusion.

Most plaintiffs here have or will recover severance pay

at an appropriate time, but it is to the policy of their

present employer that they must look.

Sejman II, 889 F.2d at 1350. A petition for rehearing and a

suggestion for rehearing en banc were denied on January 5,

1990.

REASONS FOR DENYING THE WRIT

I

THE UNIQUE BACKGROUND OF THE CASES MAKES

REVIEW UNWARRANTED

As the Fourth Circuit noted, ‘‘this litigation has pursued a

long and tortuous course’’ which ‘‘began when the governing

principles of federal preemption and benefit plan administra-

tion were less clear than they are today.’’ Sejman IJ, 889

F.2d at 1350. Due to their anomalous background, the cases

have no significance except to the parties and will affect no

other present or future litigants.

No other employees will be in a position to look to Liver-

nois, 723 F.2d 1148, as a potential source of rights and no

ba aN

—*

-

r

AS?

8

other.employers will face the Livernois decision as an historic

fact to be dealt with in their severance plan- administration

under ERISA. This Court should not squander its discretion-

ary jurisdiction on cases, such as these, which lack either

widespread impact or national importance.

Il.

THE DECISION OF THE COURT OF APPEALS IS NOT

IN CONFLICT WITH ANY DECISION OF ANOTHER

COURT OF APPEALS

In the past decade, most of the courts of appeals have had

occasion to consider the availability of severance pay under_

ERISA in the context of a sale of a division as a going con-

cern. Irrespective of which circuit these cases proceeded in,

their outcome was determined by reference to a uniform set

of considerations, including the language and purpose of the

particular severance policy at issue and the existence and

effect of any noncompliance with the procedural require-

ments of ERISA by the particular employer involved.

The decisions rendered varied from case to case depending

on how the several factors weighed in each individual case,

but the legal analysis was consistent. Compare Harris v. Pull-

man Standard, Inc., 809 F.2d 1495 (11th Cir. 1987), and

Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir. 1984),

cert, denied, 474 U.S. 865 (1985) (refusing to uphold a denial

of severance benefits following a divestiture) with Simmons

v. Diamond Shamrock Corp., 844 F.2d 517 (8th Cir. 1988);

Schwartz v. Newsweek, /Inc., 827 F.2d 879 (2d Cir. 1987);

Adcock vy. Firestone Tire & Rubber Co., 822 F.2d 623 (6th

Cir. 1987); Holland v. Burlington Indus., 772 F.2d 1140 (4th

Cir. 1985), aff'd mem. sub nom. Brooks v. Burlington

Indus., 477° U.S. 901 (1986) and cert. denied, 477 U.S. 903

(1986): Anderson v. Ciba-Geiby Corp., 759 F.2d 1518 (11th

Cir.), cert. denied, 474 U.S. 995 (1985); Jung v. FMC Corp.,

755 F.2d 708 (9th Cir. 1985); and Sly v. P.R. Mallory & Co.,

9

712 F.2d 1209 (7th Cir. 1983) (upholding a denial of sever-

ance benefits following a divestiture).

The petitioners confuse differences in result due to factual

disparities with a true conflict between the courts of appeals.

Admittedly, the Eleventh Circuit in Harris v. Pullman Stan-

dard, Inc., 809 F.2d 1495, reached a different conclusion

about the propriety of a denial of severance benefits follow-

ing a divestiture-than the Fourth Circuit did in these cases,

but both courts considered the same factors in making their

determinations. In both cases, the court of appeals consid-

ered the language and intent of the severance policy, past

practice under the plan, and the seriousness of violations of

ERISA’s procedural requirements. Each case turned on its

unique facts.There is no single, invariable interpretation

which must be given to severance policies in every case. The

so-called conflict in the circuits cited by the petitioners is thus

adequately explained by the truism that different facts may

well yield different results.

ll

THE COURT OF APPEALS PROPERLY APPLIED

ERISA STANDARDS IN WEIGHING THE CLAIM FOR

SEVERANCE PAY

In arguing that the Fourth Circuit misused ERISA to

deprive them of ‘‘vested contract rights’? promised to them in

Livernois, 723 F.2d 1148, the petitioners overlook the contin-

gent nature of severance benefits under ERISA and ignore

the existence of ERISA’s sweeping preemption provision.

1. Contingent Nature of Severance Benefits

Under ERISA, employee welfare benefits, such as sever-

ance pay, are contingent, unaccrued, and unfunded benefits

which can be. unilaterally amended or even eliminated by an

employer at any time. See 29 U.S.C. §§ 1051, 1081. Conse-

quently, employees have no vested right to these benefits, and

employers have no continuing duty to provide them. Con-

10

gress expressly exempted such benefits from the stringent

vesting requirements applicable to retirement and pension

benefits because it believed that the ‘‘vesting of these ancil-

lary benefits would seriously complicate the administration

and increase the cost of plans... .’’ H.R. Rep. No. 807,

93d Cong., 2d Sess. 60, reprinted in 1974 U.S. Code Cong. &

Admin. News 4890, 4935 (1975).

The Fourth Circuit thus acted in accordance with the gov-

erning policies of ERISA in rejecting the petitioners’ claim

that they acquired ‘‘vested contract rights’’ to severance pay

which survived their separation from Warner-Lambert.

Sejman II, 889 F.2d at 1348-49. To have held otherwise

would have thwarted Congress’ intent of exempting employee

welfare benefit plans from vesting requirements and from the

attendant administrative burden and expense. If the petition-

ers’ argument had been accepted, companies would be faced,

after the sale of a division or subsidiary, with the impossible

burden of monitoring the future careers of all their former

employees in order to determine when and why they might

eventually leave the successor employer. The court of appeals

found that:

Requiring such an ongoing obligation for severance pay-

ments after employees are employed elsewhere could dis-

courage employers like Warner-Lambert from seeking to

ensure that their former employees retain their old posi-

tions or encourage such employers to forego severance

payments altogether.

Sejman II, 889 F.2d at 1349. Cf. Ft. Halifax Packing Co. v.

Coyne, 482 U.S. 1, 13 (1987) (‘‘Faced with the difficulty or

impossibility of structuring administrative practices according

to a set of uniform guidelines, an employer may decide to

reduce benefits or simply not to pay them at all.’’)

2. Preemption |

The sweeping preemption provided for in ERISA of ‘‘any

and all State laws insofar as they may now or hereafter relate

to any employee benefit plan’’ expressly includes preemption

1]

of “all laws, decisions, rules, regulations, or other State

actions having the effect of law, of any State. 29 U.S.C.

§ 1144 (emphasis added). Decisional law, such as Livernois,

723 F.2d 1148, which purports to regulate the payment of

severance benefits under State common law principles, has

thus been preempted by ERISA and cannot serve as the basis

for resolution of a dispute over entitlement to benefits. See

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48 n.1 (1987).

In refusing to recognize Livernois as the determinative

authority which the petitioners urged it should be in deciding

their entitlement to severance pay from Warner-Lambert, the

Fourth Circuit gave proper effect to the preemption provision

of ERISA. Sejman II, 889 F.2d at 1350.

CONCLUSION

For the foregoing reasons, the Court should deny the peti-

tion for a writ of certiorari.

Dated: July 5, 1990

Respectfully submitted,

Margaret Blair Soyster

(Counsel of- Record)

ROGERS & WELLS

200 Park Avenue

New York, New York 10166

(212) 878-8000

Of Counsel:

William I. Greenbaum

Warner-Lambert Company

201 Tabor Road

Morris Plains, New Jersey 07950